Karnataka High Court
The Padubidri Members Lounge vs Director General & Inspector General Of ... on 3 October, 2018
Author: P.S.Dinesh Kumar
Bench: P.S. Dinesh Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF OCTOBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE P.S. DINESH KUMAR
WRIT PETITION Nos.42073-42075/2018(GM-RES)
BETWEEN:
1. THE PADUBIDRI MEMBERS LOUNGE
REPRESENTED BY ITS MEMBER,
MR. B. K. SHETTY,
2. SHAILESH,
S/O SADANANDA POOJARY
AGED ABOUT 28 YEARS,
3. B K SHETTY
S/O KRISHNA SHETTY
AGED ABOUT 58 YEARS,
ALL THE PETITIONERS
HAVING THEIR OFFICES AT
DOOR NO.232/H, 1ST FLOOR,
NAGARAJ ESTATE, NADASAL VILLAGE,
PADUBIDRI, UDUPI DISTRICT-574 111.
... PETITIONERS
(BY SRI AKASH B. SHETTY, ADVOCATE)
AND:
1. DIRECTOR GENERAL & INSPECTOR
GENERAL OF POLICE
POLICE HEAD QUARTERS
NRUPATHUNGA ROAD,
BANGALORE-01.
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2. THE CHIEF SECRETARY,
VIDHANA SOUDHA,
BANGALORE-01.
3. HOME SECRETARY,
DEPARTMENT OF HOME,
VIDHANASOUDHA,
BANGALORE-01.
4. INSPECTOR GENERAL OF POLICE
PANDESHWAR, MANGALORE,
DAKSHINA KANNADA-570001.
5. THE SUPERINTENDENT OF POLICE,
OLD D. C. OFFICE ROAD,
BANNANJE CIRCLE, BANNANJE,
UDUPI, KARNATAKA-576 101.
6. THE ADDITIONAL SUPERINTENDENT OF POLICE
OLD D C OFFICE ROAD,
BANNANJE CIRCLE, BANNANJE,
UDUPI, KARNATAKA-576101.
7. SUB-INSPECTOR OF POLICE,
PADUBIDRI POLICE STATION,
UDUPI DISTRICT-574 111.
8. STATE OF KARNATAKA
BY PADUBIDRI POLICE STATION,
UDUPI DISTRICT,
REPRESENTED BY SPP
HIGH COURT BUILDING,
HIGH COURT OF KARNATAKA
BANGALORE-01.
... RESPONDENTS
(BY SRI S. RACHAIAH, HCGP)
****
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THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA READ WITH SECTION 482 OF CODE OF
CRIMINAL PROCEDURE PRAYING TO QUASH THE
ENTIRE PROCEEDINGS IN CRIME NO.0075/2018
DATED 15.08.2018 IN PADUBIDRI POLICE STATION,
PENDING BEFORE THE 2ND ADDITIONAL CIVIL JUDGE
[JR.DN] AND JMFC COURT, UDUPI DISTRICT
REGISTERED FOR THE OFFENCES UNDER SECTION
79 AND 80 OF THE KARNATAKA POLICE ACT,
1963[ANNEXURE-A] AND ETC.
THESE WRIT PETITIONS COMING ON FOR
PRELIMINARY HEARING THIS DAY, THE COURT MADE
THE FOLLOWING:-
ORDER
Heard Sri Akash B. Shetty, learned advocate for petitioners and Sri S. Rachaiah, learned HCGP for respondents.
2. In these writ petitions, the petitioners have prayed for quashing criminal proceedings initiated against them for the alleged offences punishable under Sections 78(3) of the Karnataka Police Act, 1963 on the ground of non-compliance of the mandatory requirements prescribed under Section 155(2) of the Code of Criminal Procedure.
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3. Learned advocate for petitioners submits that petitioner No.1 runs a club. A raid was conducted by the police. An FIR was lodged alleging offences under Sections 78 and 80 of the Karnataka Police Act. Police Inspector, Padubidri Police Station, Udupi District sought permission to conduct investigation. The offence alleged against the petitioners is a non-cognizable offence and by virtue of the safeguard provided under Section 155(2) of Cr.P.C, the respondent-police could not have embarked upon investigation into the alleged offence, without the express permission by the jurisdictional Magistrate.
4. In the case of Praveen Basavanneppa Shivalli - vs- State of Karnataka and Others reported in 2017(1) AKR 461, this Court has held that a mere endorsement made by the Magistrate on the application submitted by the Police Officer under Section 155 of Cr.P.C. as 'permitted' is not an 'order' in the eye of law and on that ground also, the proceedings initiated against the 5 accused are rendered illegal and are liable to be quashed.
5. Undeniably, the offence alleged is a non- cognizable offence. Section 155 of the Cr.P.C, deals with the procedure of investigation and cognizance of non-cognizable cases.
"155. Information as to non- cognizable cases and investigation of such cases.
(1) When information is given to an officer in charge of a police station of the commission within the limits of such station of a non-
cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the informant to the Magistrate.
(2) No police officer shall investigate a non- cognizable case without the order of a Magistrate having power to try such case or commit the case for trial.
(3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest 6 without warrant) as an officer in charge of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offences are non- cognizable."
6. As per the above provisions, when an Officer- in-charge of the police station receives an information with regard to commission of non-cognizable offence/s,
(i) he shall enter or caused to be entered the substance of the information in a book to be maintained by the said Officer in a prescribed form and (ii) refer the informant to the Magistrate. Further, Sub-Section (2) of Section 155 Cr.P.C. mandates that no Police Officer shall investigate a non-cognizable offence without the order of a Magistrate having power to try such case or commit such case for trial.
7. In the instant case, police have failed to comply with the requirements of Section 155(1) and 155(2) of 7 Cr.P.C. There is nothing on record to show that the respondents have referred the informant to the concerned Magistrate as required under Section 155(1) of Cr.P.C., or obtained necessary order as envisaged under Section 155(2) of Cr.P.C., before embarking upon investigation. Thus, on the face of it, the respondents are seen to have violated the provisions of Sections 155(1) and 155(2) of Cr.P.C.
8. Learned HCGP appearing for the State, however, submitted that the endorsement made by the learned Magistrate permitting the Police is sufficient compliance.
9. In the light of above discussion, it has to be held that, the endorsement made by learned Magistrate stating 'permitted' does not satisfy the requirements of Section 155(2) of Cr.P.C. Resultantly, these petitions merit consideration and are accordingly allowed. All proceedings in Crime No.75/2018 registered on 15.8.2018 in Padubidiri Police Station pending on the 8 file of II Additional Civil Judge (Jr.Dn.) and JMFC Court, Udupi District, are quashed.
No costs.
Sd/-
JUDGE Nsu/-